Recall group in San Bernardino goes to court over signatures

View: Legal writ of mandate SAN BERNARDINO -- The group attempting to recall city elected officials filed a writ of mandate on Monday asking the San Bernardino Superior Court to force City Clerk Gigi Hanna to count signatures against James F. Penman that Hanna has rejected as improperly collected.

The lawsuit says Hanna's reason is a "false pretext" and her actions "are not supported by the facts or the language of Charter Section 122."

It also asks the court to find that an "anti-recall petition" stating opposition to the sale of the city's water system and a desire for anyone who signs the anti-recall petition to have their name removed from any recall petitions does not qualify as a withdrawal petition and that Hanna acted unlawfully by not invalidating it.

"We believe that Ms. Hanna has repeatedly violated provisions of the Charter and State Elections Law concerning the recall," said Michael L. Allan, the recall committee's attorney, in a prepared statement.

When the lawsuit is heard is up to the court, but campaign manager Michael McKinney said he fully expected legal issues to be resolved on a timeline that holds the recall election during the regularly scheduled citywide election on Nov. 5.

Hanna said she had not received a copy of the writ by close of business and so could not comment.

When she rejected the petitions to recall Penman, Hanna said the charter allows petitions to be circulated only after the simultaneous publication of a notice of intention to circulate a petition, reasons for that petition and the targeted official's response, if the official requests it. Penman has a copy of his request with a time stamp indicating the request was made by the deadline and at the same minute that he submitted his response to the notice of intent to circulate a petition.

But the recall group points to statements they say Hanna made May 14 and in writing May 30 that "none of (the office holders) indicated at the time they filed response that they wanted to publish."

"Penman's answer was included on the Petition for Recall affording voters the opportunity to read his answer as information," McKinney said. "His failure to timely file a declaration of intent to publish does not affect the validity of the election process."

Penman says that's just one of many misstatements he found in a quick scan of the 160-page filing, beginning nearly on the first line. On the first page and throughout the filing, the writ lists as defendants Hanna and "Joseph E. Canciamilla, in his official capacity as the Registrar of Voters of the County of San Bernardino."

Canciamilla is registrar of voters and county clerk in Contra Costa County, while San Bernardino's registrar is Michael Scarpello.

"I think it's significant because it's not just a clerical error," Penman said, saying the filing is done under oath. "These people don't know our city, they don't know our county, and they continue to misrepresent the truth to our voters."

McKinney said the misidentification would be corrected and would have no effect on the lawsuit. Additionally, it would be amended to include petitions for other officials that Hanna has said she plans to reject based on the same reasoning but that have not yet been submitted.

The form of the anti-recall petitions -- "apparently a Petition in which signers are sending a message to the Council opposing (non-existent) water rate increases and a (non-existent) privatization of the municipal water district" -- means it must meet certain requirements that were not met, the lawsuit alleges.

Penman, who according to the lawsuit is "rumored" to have turned in about 1,200 anti-recall signatures as of June 3, stood by what recall opponents insist is a false charge that the recall is an attempt by organizer Scott Beard and others to sell the city's water system and profit from that.

"I wrote an op-ed that ran in The Sun on Sunday that I think fully answers that fallacious argument," Penman said. "It is about water, and Mr. Beard knows that."